Opinion
16-P-850
05-19-2017
COMMONWEALTH v. Patrick DUROCHER.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of rape and assault and battery. On appeal, he claims that the cumulative effect of improper testimony, while stricken from the record, nevertheless requires reversal. He also challenges the exclusion of a statement from a prior recorded deposition. We affirm.
The jury found him not guilty of kidnapping.
1. Improper testimony. The charges arose from an incident wherein the defendant was discovered having sexual intercourse with the victim in an open area of the campus of the University of Massachusetts at Amherst. When passersby approached, they discovered that the victim was laying with her arms over her head, not moving. After trying to interact with her, several individuals, who later testified at trial, observed that the victim was highly intoxicated.
On appeal, the defendant cites improper words and phrases in the testimony of several witnesses that he claims, when viewed as whole, deprived him of a fair trial. The claim fails, if for no other reason, than because all of the cited improper testimony was objected to and clearly stricken from the record. "Jurors are presumed to follow a judge's instructions, including instructions to disregard certain testimony." Commonwealth v. Williams, 450 Mass. 645, 651 (2008).
Nevertheless, the defendant contends that the limiting instructions were insufficient to remedy the prejudice he suffered. The assertion is belied by the largely benign nature of the language cited and the grounds of the objections thereto. The majority of the objected-to language was stricken in favor of more specific language describing the witness's personal and direct observations. For instance, the judge struck multiple witnesses' use of the term "unconscious" or "passed out," limiting their testimony to observations such as the victim's eyes were closed or she was not moving. Likewise, testimony that speculated about the defendant's state of mind was stricken and limited to the witness's direct observations.
As to the nonpolice witnesses' use of the terms "rape," "crime," "crime scene," "evidence," "victim," and "sexual assault," each statement was an isolated occurrence, and the judge forcefully instructed the jury that it was their job alone to determine whether a sexual assault did, in fact, occur. As for the police use of similar language, it is common knowledge that police investigate crimes and gather evidence. Accordingly, this testimony was unlikely to sway the jury to any perceptible degree. And, as we have already noted, the judge carefully told the jury to disregard all statements that were stricken.
Finally, even assuming we agree with the defendant that all of the language he cited was improper, none of it was central to his defense of consent and it occurred over the course of a nine-day trial. The jury also were discerning, having convicted him of a lesser included charge of rape, and acquitting him of kidnapping. See Commonwealth v. Wolcott, 28 Mass. App. Ct. 200, 211 (1990). In these circumstances, reversal is not warranted.
The defendant was charged with aggravated rape.
Notably, the defendant neither moved for a mistrial, nor otherwise asserted a claim at trial that the judge's actions were inadequate.
2. Deposition testimony. Because one of the Commonwealth's witnesses would not be available for trial, the trial judge presided over the earlier taking of her deposition. During the deposition, the witness testified that the victim stated, immediately after the incident, "I'm such a slut."
Defense counsel objected on the basis of hearsay, the judge sustained the objection, and the prosecutor continued her questioning of the witness. At trial, the defendant argued that, despite the objection, the testimony should be admissible as a prior inconsistent statement. The Commonwealth opposed on two grounds: (1) that had the objection not been sustained, her questioning of the witness would have taken a different course, and (2) that there was no inconsistency because the victim testified at trial that she had no memory of the time period immediately following the incident. The judge agreed with the Commonwealth on both grounds, and ordered the statement be redacted from the deposition testimony before it was presented to the jury. The defendant renews his argument on appeal.
Defense counsel did not raise the claim of admissibility of this statement as a prior inconsistent statement during the deposition. As a result, questioning on this topic ended without the incentive or motivation of the prosecutor to explore it further.
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For the reasons cited by the Commonwealth and the judge, we agree that the statement was inadmissible at trial. See Commonwealth v. Martin, 417 Mass. 187, 197 (1994). See also Mass. G. Evid. § 613 (2017).
Judgments affirmed.